wewlawfirm hero image

Personal Injury, Wrongful Death, Mass Tort Cases, Class Actions, Labor / Employment Law Attorney

The Attorney-Client Privilege

By William Waddell,

When a person needs to talk to a lawyer, he or she can take solace in knowing that the discussion with the lawyer will be protected by the attorney-client privilege. The attorney-client privilege offers protection from the very first meeting between the attorney and the prospective client. Since 1851, laws have recognized the attorney-client privilege, making it the oldest evidentiary privilege in California law.

Simply put, a client’s communication made in confidence to an attorney cannot be discovered by the opposing party or anyone in the world for that matter (except in a few instances discussed below). The reason for the privilege is clear: a client should feel free to tell his or her attorney everything and anything without fearing the information will be made public. In fact, even if the information is of vital importance, it will not be disclosed. An example of the broad-reaching effect of the privilege can be found in criminal law, where a criminal defendant’s lawyer cannot disclose to the prosecutor or the judge that his client admitted to the criminal act in confidence.

Even though some may argue that the privilege is too broad, in California the courts and the legislature have determined that the attorney-client privilege is warranted because the benefits derived from the privilege justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence. (see Mitchell v. Sup. Ct. (1984) 37 Cal.3d 591, 599)

The law is clear that the actual content of the communications between the attorney and client are privileged and not subject to discovery (except in a few instances discussed below). However, the rules regarding the retention of an attorney are less clear. There are many reasons why the events and circumstances surrounding retention of an attorney might be considered relevant under the broad scope of discovery. For example, a client meeting with an attorney for the first time and who thereafter seeks medical treatment for his/her injuries might be discoverable to prove that the client only sought medical treatment because the attorney told him/her to as opposed to being truly injured. Conversely, if the circumstances surrounding the decision to retain an attorney are discoverable, such a rule could interfere with the attorney-client relationship and actually discourage a person form seeking the advice and counsel of an attorney.

To understand the exception, the client needs to know that the privilege applies “only to communications and not to facts.” Upjohn Co. v. U.S. (1981) 449 U.S. 383, 101 S.Ct. 677 (1981). Moreover, the privilege applies only to communications that are of a confidential in nature. California Evidence Code §§ 952, 954.

The privilege does not protect independent facts about the communication as opposed to the content thereof. For example, in some instances, the opposing party may be permitted to discover that the client spoke with his attorney, when and where the conversation happened and the names of all persons participating in the conversation. State Farm Fire And Casualty Co. v. Sup. Ct. (1997) 54 Cal.App.4th 625, 640. The “independent facts” generally make up the information necessary to establish the foundation to support application of the privilege in the first instance. The attorney-client privilege simply cannot be properly invoked to protect all communications where the client was present; the conversation needs to be confidential and not in the presence of others (except in the presence other lawyers in the office of the assistants or secretaries of the lawyer). “Transmission alone, even where the parties intend the matter to be confidential, cannot create the privilege if none, in fact, exists.” See Suezaki v. Sup. Ct. (1962) 58 Cal.2d 166, 176

While it may seem that any fact surrounding attorney retention merits protection from discovery to promote free and unfettered discussions between the attorney and client, the fact that the client met with the attorney is not protected provided there is some relevance between the meeting and the dispute between the parties.

All clients should also know that there are a few exceptions to the privilege, such as intent to commit a crime, fiduciary duty within a corporation, and the death of a client. Of course, if the client consents to the disclosure, then the statements are no longer confidential and may be disclosed.
The intended message of this article is to let prospective clients know that they can tell their attorneys everything knowing that the attorney cannot divulge that information without the client’s consent. If you need a lawyer, even if it is just to clear your head, understand your rights, or learn of the potential outcomes, you can rest assured that your conversations will remain confidential.

William E. Waddell is the principle of the Law Offices of William E. Waddell and is also “of counsel” to the firm of Yuhl Carr, LLP. He is a graduate of the University of the Pacific, McGeorge School of Law; where he was awarded the “Best Trial Advocate Award.” With offices in Marina Del Rey, CA, Mr. Waddell handles personal injury, employment law and other matters.
Website: www.wewlawfirm.com; Email: william@wewlawfirm.com; Telephone.: (310) 318-6398

Comments are closed for this post.

Specializing In

Additional Practice Areas

Articles

Pedestrian Injury Claims

LOS ANGELES COUNTY – PEDESTRIAN INJURY SAFETY: As reported by the Los Angeles Times on July 12, 2015, Los Angeles County is not a safe haven for pedestrians.  In the recent article, after performing a comprehensive evaluation of data for the period 2002 through 2013, the LA Times identified more than...

Read More

You Have A Workers Compensation Claim; But Do You Also Have An Independent Third Party Claim?

Third Party Claims for Injuries Suffered at Work: Most employed Californians are aware that if they are injured on the job they are entitled to benefits in the form of salary and medical treatment as part of the state mandated workers compensation insurance coverage. What some Californians don’t know, is...

Read More

Payment of Medical Expenses in a Personal Injury Claim

Don’t Rely on the Insurance Company for the Person that Caused the Injuries: Some people believe that the insurance company for the person that caused the injuries will simply do the right thing and pay the medical costs incurred to diagnose and treat the injuries. This is not true. If...

Read More

When Medicare Wants Reimbursement of Medical Costs in a Personal Injury Case

Many Medicare recipients, who are injured in an accident giving rise to a personal injury claim or lawsuit,  don’t realize that Medicare is going to seek reimbursement of the medical costs it paid for the injuries suffered.  In fact, Medicare takes a very hard line in seeking reimbursement and normally...

Read More

What To Do After An Accident

It is important that a person involved in an automobile accident understand that injuries sustained as a result of an accident may not seem apparent at the time of the accident. One to four days after the accident, the soreness, stiffness and pain may finally surface. Whether you are aware...

Read More

How a Typical Personal Injury Claim is Handled by an attorney

Most every personal injury case is unique. For example, each case involves different people or companies. The facts and circumstances of the events causing the injuries differ. The injuries differ, as do the treating doctors and the treatment plan for such injuries. In addition, different insurance companies and appointed attorneys...

Read More

The Attorney-Client Privilege

When a person needs to talk to a lawyer, he or she can take solace in knowing that the discussion with the lawyer will be protected by the attorney-client privilege. The attorney-client privilege offers protection from the very first meeting between the attorney and the prospective client. Since 1851, laws...

Read More